Obama's use of executive power faces reckoning at Supreme Court

[Rocketman]

Nothing less than the boundaries of executive power are at stake Monday as the Supreme Court considers whether President Obama violated the Constitution during his first term.

Oral arguments slated for Monday will center on a trio of recess appointments to the National Labor Relations Board (NLRB) that were deemed unconstitutional by lower courts.


If they uphold the decision, experts say the justices could endanger hundreds of NLRB decisions.

Even more significant are the ramifications for future presidents, with the court poised either to bolster or blunt the chief executive’s appointment powers.

“Rulings like this have implications that last for centuries,” said Michael Lotito, an employment and labor attorney and co-chairman of Littler Mendelson's Workplace Policy Institute.

Presidents have for decades used recess appointment powers when the Senate is away to install judges and fill top federal vacancies that ordinarily would be subject to confirmation proceedings.

But with the disputed NLRB appointments, Obama became the first president to appoint nominees when the Senate was in a “pro-forma” session, when the upper chamber is briefly called to order and adjourned every few days.



Read more: Obama
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[Steve Ja]

Nothing less than the boundaries of executive power are at stake Monday as the Supreme Court considers whether President Obama violated the Constitution during his first term.

Oral arguments slated for Monday will center on a trio of recess appointments to the National Labor Relations Board (NLRB) that were deemed unconstitutional by lower courts.


If they uphold the decision, experts say the justices could endanger hundreds of NLRB decisions.

Even more significant are the ramifications for future presidents, with the court poised either to bolster or blunt the chief executive’s appointment powers.

“Rulings like this have implications that last for centuries,” said Michael Lotito, an employment and labor attorney and co-chairman of Littler Mendelson's Workplace Policy Institute.

Presidents have for decades used recess appointment powers when the Senate is away to install judges and fill top federal vacancies that ordinarily would be subject to confirmation proceedings.

But with the disputed NLRB appointments, Obama became the first president to appoint nominees when the Senate was in a “pro-forma” session, when the upper chamber is briefly called to order and adjourned every few days.



Read more: Obama
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Wow this can be huge, but doubt they do anything to change the powers. Will be interesting to follow this issue

 

[Perotista]

Nothing less than the boundaries of executive power are at stake Monday as the Supreme Court considers whether President Obama violated the Constitution during his first term.

Oral arguments slated for Monday will center on a trio of recess appointments to the National Labor Relations Board (NLRB) that were deemed unconstitutional by lower courts.


If they uphold the decision, experts say the justices could endanger hundreds of NLRB decisions.

Even more significant are the ramifications for future presidents, with the court poised either to bolster or blunt the chief executive’s appointment powers.

“Rulings like this have implications that last for centuries,” said Michael Lotito, an employment and labor attorney and co-chairman of Littler Mendelson's Workplace Policy Institute.

Presidents have for decades used recess appointment powers when the Senate is away to install judges and fill top federal vacancies that ordinarily would be subject to confirmation proceedings.

But with the disputed NLRB appointments, Obama became the first president to appoint nominees when the Senate was in a “pro-forma” session, when the upper chamber is briefly called to order and adjourned every few days.



Read more: Obama
Follow us: @thehill on Twitter | TheHill on Facebook

I suppose the issue will be judged on whether a pro forma senate session is in reality a real senate session. My guess. Personally I think the pro forma sessions was just a way to stop the president from making appointments without the approval of congress. I also think a pro forma sessions isn't a real senate session, just one in name only.

But is used to prevent any president from making appointments while the senate is in recess. Here is what the constitution says: The President shall have the Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

I have always had questions on this. It states: "To fill up all vacancies that may happen during the Recess of the Senate." May happen during the recess of the senate, seems to me to be saying that vacancy must happen during the recess and not before or after. Also what about: which shall expire at the end of their next session? Doesn't that mean at the end of the next session of the senate that anyone appointed by a recess appointment has to step down. His commission has ended?

I don't know, but that is how I read it. But what the constitution states in plain English is usually not how it is interpreted.

 

[polgara]

I suppose the issue will be judged on whether a pro forma senate session is in reality a real senate session. My guess. Personally I think the pro forma sessions was just a way to stop the president from making appointments without the approval of congress. I also think a pro forma sessions isn't a real senate session, just one in name only.

But is used to prevent any president from making appointments while the senate is in recess. Here is what the constitution says: The President shall have the Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

I have always had questions on this. It states: "To fill up all vacancies that may happen during the Recess of the Senate." May happen during the recess of the senate, seems to me to be saying that vacancy must happen during the recess and not before or after. Also what about: which shall expire at the end of their next session? Doesn't that mean at the end of the next session of the senate that anyone appointed by a recess appointment has to step down. His commission has ended?

I don't know, but that is how I read it. But what the constitution states in plain English is usually not how it is interpreted.

Most rational people agree with your interpretation. If this was happening anywhere else except in DC, it would be interpreted exactly as it sounds in the Constitution! The "expire at the end of their next session" means the appointment was temporary, and the person must either be re-appointed or someone else chosen to fill the slot. Not much argument there, unless the wording "next session" is questioned. That's what happens when you don't have people with common sense running things...instead we have a bunch of lawyers whose specialty is finding things to argue about! :2mad:

Greetings, Pero. :2wave:

 

[Perotista]

Most rational people agree with your interpretation. If this was happening anywhere else except in DC, it would be interpreted exactly as it sounds in the Constitution! The "expire at the end of their next session" means the appointment was temporary, and the person must either be re-appointed or someone else chosen to fill the slot. Not much argument there, unless the wording "next session" is questioned. That's what happens when you don't have people with common sense running things...instead we have a bunch of lawyers whose specialty is finding things to argue about! :2mad:

Greetings, Pero. :2wave:

It seems next session when it comes to judges and I assume the NLRB is permanent.

 

[polgara]

It seems next session when it comes to judges and I assume the NLRB is permanent.

If the lower courts have ruled it unconstitutional, what did they base their decision on? Grimm's Fairy Tales? It seems strange to me that all of a sudden, things just don't mean what they used to since the late 1700s. Of course, our Constitution has never been a hindrance before to people who want things done the way the Constitution states, either!

 

[CanadaJohn]

I suppose the issue will be judged on whether a pro forma senate session is in reality a real senate session. My guess. Personally I think the pro forma sessions was just a way to stop the president from making appointments without the approval of congress. I also think a pro forma sessions isn't a real senate session, just one in name only.

But is used to prevent any president from making appointments while the senate is in recess. Here is what the constitution says: The President shall have the Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

I have always had questions on this. It states: "To fill up all vacancies that may happen during the Recess of the Senate." May happen during the recess of the senate, seems to me to be saying that vacancy must happen during the recess and not before or after. Also what about: which shall expire at the end of their next session? Doesn't that mean at the end of the next session of the senate that anyone appointed by a recess appointment has to step down. His commission has ended?

I don't know, but that is how I read it. But what the constitution states in plain English is usually not how it is interpreted.

Good evening Pero,

I'd make two points here:

1. I believe the powers to appoint during recess of the Senate was to accommodate a time hundreds of years ago when the Senate could not readily meet if on recess due to the inability to readily travel to the capital and meet. Today, the system of recess appointments is abused by Presidents who aren't happy with lack of Senate cooperation and the Senate in turn abuses it's "consent" provision when unhappy with the President's lack of cooperation.

2. The Senate is a separate and equal partner/branch in your system - the judiciary and the executive being the others. In my view, because of this, it is the Senate who decides if they are in session, not one or another of the branches. You would no more expect the Senate and/or the President to be able to set the calendar of the Supreme Court than you would expect the President or the Supreme Court to set the calendar of the Senate. For this reason, the lower courts were correct and I think the Supreme Court only wishes to be involved to settle the matter once and for all. In my view, the court will rule these appointments unconstitutional.

 

[Perotista]

If the lower courts have ruled it unconstitutional, what did they base their decision on? Grimm's Fairy Tales? It seems strange to me that all of a sudden, things just don't mean what they used to since the late 1700s. Of course, our Constitution has never been a hindrance before to people who want things done the way the Constitution states, either!

It is hard to say what they based their decisions on Pol, I didn't even know there had been two lower court rulings. Even so, there has been cases where the lower courts have went one way and the SCOTUS have gone completely opposite. Sometimes it depends it depends on which lower court heard the case. There can be ideological differences, a court where most of the justices are appointed by democrats tend to be much more activist and do not place as much emphasis on original intent as to republican appointed justices. That is generally the rule of the thumb, but not always.

Like it or not, our court system is politicalized. FDR once tried to pack the court, he wanted to increase it to 15 justices because the current SCOTUS ruled against some of his much wanted new deal policies. But by 1941 FDR had appointed 8 of the 9 justices so he did end up with a court he wanted. How this SCOTUS will rule, who the heck knows. I have been wrong on almost every prediction I made concerning their rulings. But I tend to take what the constitution says at point black without reading a ton of stuff into it.

 

[Perotista]

Good evening Pero,

I'd make two points here:

1. I believe the powers to appoint during recess of the Senate was to accommodate a time hundreds of years ago when the Senate could not readily meet if on recess due to the inability to readily travel to the capital and meet. Today, the system of recess appointments is abused by Presidents who aren't happy with lack of Senate cooperation and the Senate in turn abuses it's "consent" provision when unhappy with the President's lack of cooperation.

2. The Senate is a separate and equal partner/branch in your system - the judiciary and the executive being the others. In my view, because of this, it is the Senate who decides if they are in session, not one or another of the branches. You would no more expect the Senate and/or the President to be able to set the calendar of the Supreme Court than you would expect the President or the Supreme Court to set the calendar of the Senate. For this reason, the lower courts were correct and I think the Supreme Court only wishes to be involved to settle the matter once and for all. In my view, the court will rule these appointments unconstitutional.

How CJ, you're right on with Point number one. Any recess appointment is an abuse of the system but presidents from both parties do it. This one is just more blatant with it. He pushes these things way past what any of his predecessors would have dreamed of.

On point two, that sounds like common sense. But like I told Pol, almost every ruling where I predicted what the SCOTUS would do, they have ruled the complete opposite.

This is interesting:

In the Federal government of the United States, either house of the Congress (the House of Representatives or the Senate) can hold a pro forma session at which no formal business is expected to be conducted.[5] This is usually to fulfill the obligation under the Constitution "that neither chamber can adjourn for more than three days without the consent of the other."[6] Pro forma sessions can also be used to prevent the President pocket-vetoing bills, or calling the Congress into special session.[7] They have also been used to prevent presidents from making recess appointments. However, in 2012, President Barack Obama made four appointments during a pro forma session,[8] calling the practice of blocking recess appointments into question.[9]

 

[beerftw]

I suppose the issue will be judged on whether a pro forma senate session is in reality a real senate session. My guess. Personally I think the pro forma sessions was just a way to stop the president from making appointments without the approval of congress. I also think a pro forma sessions isn't a real senate session, just one in name only.

But is used to prevent any president from making appointments while the senate is in recess. Here is what the constitution says: The President shall have the Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

I have always had questions on this. It states: "To fill up all vacancies that may happen during the Recess of the Senate." May happen during the recess of the senate, seems to me to be saying that vacancy must happen during the recess and not before or after. Also what about: which shall expire at the end of their next session? Doesn't that mean at the end of the next session of the senate that anyone appointed by a recess appointment has to step down. His commission has ended?

I don't know, but that is how I read it. But what the constitution states in plain English is usually not how it is interpreted.

i believe it means during recess the president can temporarily appoint someone,but it must be voted on upon congress returning from recess.

ieie if a psition needs filled,but congress isnt around for a vote,he can fill it til they return to vote,in which congress can turn down his appointee or vote yay.its kinda a way to allow stuff short term,but grants no permanent authority for the pres to fill a position without congressional approval.

 

[Mason66]

I suppose the issue will be judged on whether a pro forma senate session is in reality a real senate session. My guess. Personally I think the pro forma sessions was just a way to stop the president from making appointments without the approval of congress. I also think a pro forma sessions isn't a real senate session, just one in name only.

But is used to prevent any president from making appointments while the senate is in recess. Here is what the constitution says: The President shall have the Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

I have always had questions on this. It states: "To fill up all vacancies that may happen during the Recess of the Senate." May happen during the recess of the senate, seems to me to be saying that vacancy must happen during the recess and not before or after. Also what about: which shall expire at the end of their next session? Doesn't that mean at the end of the next session of the senate that anyone appointed by a recess appointment has to step down. His commission has ended?

I don't know, but that is how I read it. But what the constitution states in plain English is usually not how it is interpreted.

I think you are Reading it correctly. It seems the "shall expire at the end of their next sesión" would give the senate a chance to confirm the person or not at the beginning of the next session.

It looks like this was not a way to go asround the senate but rather to fill a position in the interm while they were out but the senate gets a chance to confirm inthe next sesión.

 

[Mason66]

i believe it means during recess the president can temporarily appoint someone,but it must be voted on upon congress returning from recess.

ieie if a psition needs filled,but congress isnt around for a vote,he can fill it til they return to vote,in which congress can turn down his appointee or vote yay.its kinda a way to allow stuff short term,but grants no permanent authority for the pres to fill a position without congressional approval.

But the first part of the law is interesting where it says "To fill up all vacancies that may happen during the Recess of the Senate"

This seems pretty clear that the vacancy has to happen when the senate is on recess. If the position was vacant before the senate went on recess, then there is no rush to get somebody in there or it could have been done when the senate was there

 

[CanadaJohn]

How CJ, you're right on with Point number one. Any recess appointment is an abuse of the system but presidents from both parties do it. This one is just more blatant with it. He pushes these things way past what any of his predecessors would have dreamed of.

On point two, that sounds like common sense. But like I told Pol, almost every ruling where I predicted what the SCOTUS would do, they have ruled the complete opposite.

This is interesting:

In the Federal government of the United States, either house of the Congress (the House of Representatives or the Senate) can hold a pro forma session at which no formal business is expected to be conducted.[5] This is usually to fulfill the obligation under the Constitution "that neither chamber can adjourn for more than three days without the consent of the other."[6] Pro forma sessions can also be used to prevent the President pocket-vetoing bills, or calling the Congress into special session.[7] They have also been used to prevent presidents from making recess appointments. However, in 2012, President Barack Obama made four appointments during a pro forma session,[8] calling the practice of blocking recess appointments into question.[9]

If I'm not mistaken, the appointments in question were made by Obama because there weren't sufficient union supportive Democrats on the NLRB at the time and the Senate delayed/refused appointment of highly partisan unionists. Obama wanted union friendly rulings in support of those who greatly funded his election and reelection.

This issue is important, theoretically, because it will limit the President now and in the future, but also potentially void all rulings of the NLRB taken with the Obama appointees present and participating. It is theoretical, mainly, because now that the Senate has adopted the "nuclear option" regarding appointments, there are likely sufficient Democrats to support the confirmation of these appointees now, regardless of how the court rules. I'm surprised the Senate hasn't done so already, but maybe they have.

 

[Perotista]

i believe it means during recess the president can temporarily appoint someone,but it must be voted on upon congress returning from recess.

ieie if a psition needs filled,but congress isnt around for a vote,he can fill it til they return to vote,in which congress can turn down his appointee or vote yay.its kinda a way to allow stuff short term,but grants no permanent authority for the pres to fill a position without congressional approval.

That is pretty much my interpretation also. But it never happens or hasn't happen in my life time. Any appointment made during a recess has stood as if the congress had approved the appointment.

Nice 4th ID patch, I installed the DRSN when the 4th ID was at Hood and again at Carson.

 

[Perotista]

I think you are Reading it correctly. It seems the "shall expire at the end of their next sesión" would give the senate a chance to confirm the person or not at the beginning of the next session.

It looks like this was not a way to go asround the senate but rather to fill a position in the interm while they were out but the senate gets a chance to confirm inthe next sesión.

That is the way I read it too. But I go back to Eisenhower and have never seen an appointment made when the senate was not in session expire or be voted on. This fact makes me wonder if I have missed something or what the Constitution says in plain English isn't what it really means.

 

[Perotista]

If I'm not mistaken, the appointments in question were made by Obama because there weren't sufficient union supportive Democrats on the NLRB at the time and the Senate delayed/refused appointment of highly partisan unionists. Obama wanted union friendly rulings in support of those who greatly funded his election and reelection.

This issue is important, theoretically, because it will limit the President now and in the future, but also potentially void all rulings of the NLRB taken with the Obama appointees present and participating. It is theoretical, mainly, because now that the Senate has adopted the "nuclear option" regarding appointments, there are likely sufficient Democrats to support the confirmation of these appointees now, regardless of how the court rules. I'm surprised the Senate hasn't done so already, but maybe they have.

If the SCOTUS rules different than what the constitution says in plain English, I guess the Republicans would have to gain control in order to give their advice and consent. I fully expect to see the nuclear option expanded to a point where the filibuster rule is totally done away with. Then when a party controls the White House, the Senate and the House, the minority party has absolutely no control of what is passed and put into law. I expect very wild swings from the extreme left to the extreme right legislation when this occurs. The days of moderating laws are now a thing of the past.

Reminds me of Rome's later days. Political parties have now become the most important aspect when it comes to legislation.

 

[polgara]

If the SCOTUS rules different than what the constitution says in plain English, I guess the Republicans would have to gain control in order to give their advice and consent. I fully expect to see the nuclear option expanded to a point where the filibuster rule is totally done away with. Then when a party controls the White House, the Senate and the House, the minority party has absolutely no control of what is passed and put into law. I expect very wild swings from the extreme left to the extreme right legislation when this occurs. The days of moderating laws are now a thing of the past.

Reminds me of Rome's later days. Political parties have now become the most important aspect when it comes to legislation.

:agree: History does repeat itself, doesn't it? Until human nature changes, it probably always will. Why does it always seem like bad times always seem to last longer than good...or maybe they don't--it just seems like they do! :mrgreen:

Greetings, Pero. :2wave:

 

[CanadaJohn]

If the SCOTUS rules different than what the constitution says in plain English, I guess the Republicans would have to gain control in order to give their advice and consent. I fully expect to see the nuclear option expanded to a point where the filibuster rule is totally done away with. Then when a party controls the White House, the Senate and the House, the minority party has absolutely no control of what is passed and put into law. I expect very wild swings from the extreme left to the extreme right legislation when this occurs. The days of moderating laws are now a thing of the past.

Reminds me of Rome's later days. Political parties have now become the most important aspect when it comes to legislation.

I'm really not as pessimistic as you are about this. I fully expect the Republicans to gain control of the Senate this year and it wouldn't surprise me if they agree to rescind the "nuclear option" and go back to the standard that was in place. I think there are enough Senators in both parties that might see their power erode and their influence decrease if the nuclear option is expanded. They would then, in effect, become a longer serving House.

 

[Perotista]

:agree: History does repeat itself, doesn't it? Until human nature changes, it probably always will. Why does it always seem like bad times always seem to last longer than good...or maybe they don't--it just seems like they do! :mrgreen:

Greetings, Pero. :2wave:

Howdy Pol. It is getting close to the time for me to pick up my grand daughter from school. Bad times always seem to last longer. In the good times we just kick back and enjoy them.

 

[Perotista]

I'm really not as pessimistic as you are about this. I fully expect the Republicans to gain control of the Senate this year and it wouldn't surprise me if they agree to rescind the "nuclear option" and go back to the standard that was in place. I think there are enough Senators in both parties that might see their power erode and their influence decrease if the nuclear option is expanded. They would then, in effect, become a longer serving House.

CJ, the nuclear option is out of the bag. As one old saying goes which I like a lot better than a cat is, :Once the toothpaste is out of the tube, there is no putting it back. That saying really does show how difficult once a precedent is set for others not to use it. It has become free game. If anything the Republicans will expand it. Not while Obama is president, but when they get their own president in the white house. As for 2014, when making my prediction not only do I go by district by district in the house and state by state in the senate, I also have 4 criteria that one can look at at a glance and know how the election will probably go without really having to delve into these things too deeply.

Four criteria for a Republican landslide in November of 2014

President Obama Approval Rating of below 45%: Today he is at 42.1% approve 53.4%

ACA gap of 15 points in the oppose side: Today it is at 15.3%

Generic Congressional Poll lead of plus 5 points or more: Today it is at minus 0.1

Party affiliation/identification Republicans relative even with Democrats and has a total lead of at least 5 points when Independent lean Republican and Independent lean Democrat are added with the party base statistics: Today the party affiliation is 24% Republican 30% Democrat and when you include the Independent leans the Democrats lead 44-42.


So only two of the four are in place today, the president’s approval rating and the gap for the ACA. This leads me to believe a change of plus or minus 5 seats in the house and only a gain of 3-5 seats in the senate. Not enough for the Republicans to wrestle control.

 

[CanadaJohn]

CJ, the nuclear option is out of the bag. As one old saying goes which I like a lot better than a cat is, :Once the toothpaste is out of the tube, there is no putting it back. That saying really does show how difficult once a precedent is set for others not to use it. It has become free game. If anything the Republicans will expand it. Not while Obama is president, but when they get their own president in the white house. As for 2014, when making my prediction not only do I go by district by district in the house and state by state in the senate, I also have 4 criteria that one can look at at a glance and know how the election will probably go without really having to delve into these things too deeply.

Four criteria for a Republican landslide in November of 2014

President Obama Approval Rating of below 45%: Today he is at 42.1% approve 53.4%

ACA gap of 15 points in the oppose side: Today it is at 15.3%

Generic Congressional Poll lead of plus 5 points or more: Today it is at minus 0.1

Party affiliation/identification Republicans relative even with Democrats and has a total lead of at least 5 points when Independent lean Republican and Independent lean Democrat are added with the party base statistics: Today the party affiliation is 24% Republican 30% Democrat and when you include the Independent leans the Democrats lead 44-42.


So only two of the four are in place today, the president’s approval rating and the gap for the ACA. This leads me to believe a change of plus or minus 5 seats in the house and only a gain of 3-5 seats in the senate. Not enough for the Republicans to wrestle control.

I'm not saying Republicans are necessary smart, but they would be if they rescinded the nuclear option if they got back into control of the Senate in 2014. Two reasons - one, Obama will still be President so they can't take the chance that a simple majority may approve an appointment they detest and two, they would appear more concilliatory to the other side if they undid what was seen by many as a power grab by the Dems. I'm more hopeful of this than you are, but it's a big if.

As for the election, control of the House is a Republican lock - no chance Dems get close. The Senate, I believe, is more volatile than may be apparent now. But in the end it will totally depend on Republican candidates and in the last two elections the Republicans made a mess of things and handed the Senate back to the Dems both times.

 

[Perotista]

I'm not saying Republicans are necessary smart, but they would be if they rescinded the nuclear option if they got back into control of the Senate in 2014. Two reasons - one, Obama will still be President so they can't take the chance that a simple majority may approve an appointment they detest and two, they would appear more concilliatory to the other side if they undid what was seen by many as a power grab by the Dems. I'm more hopeful of this than you are, but it's a big if.

As for the election, control of the House is a Republican lock - no chance Dems get close. The Senate, I believe, is more volatile than may be apparent now. But in the end it will totally depend on Republican candidates and in the last two elections the Republicans made a mess of things and handed the Senate back to the Dems both times.

Yeah, how many more Aiken's, Mourdock's, Angles, and O'Donnell's can they stand? The GOP may be giving Kentucky to the Dems this year by having Bevens, a tea party candidate challenge McConnell. McConnell is already in a fight for his life against Grimes. There are supposedly 80 some tea party candidates that will try to unseat incumbent Republicans. Incumbents are very hard to beat, but an open seat brings the odds way down and then the question is, how many Aiken's will be in that batch of tea party candidates. Besides a hard fought primary dirties both candidates and makes the incumbent spend cash he wouldn't have had to without a challenge.

It seems in the end the Republicans are their own worst enemy. Even worst than the Democrats when it comes to winning elections.

 

[274ina]

How many RECESS appointments did RAYGUN use?

OPPS!!!! there goes that talking point!

 

[NotreDame]

I suppose the issue will be judged on whether a pro forma senate session is in reality a real senate session. My guess. Personally I think the pro forma sessions was just a way to stop the president from making appointments without the approval of congress. I also think a pro forma sessions isn't a real senate session, just one in name only.

But is used to prevent any president from making appointments while the senate is in recess. Here is what the constitution says: The President shall have the Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

I have always had questions on this. It states: "To fill up all vacancies that may happen during the Recess of the Senate." May happen during the recess of the senate, seems to me to be saying that vacancy must happen during the recess and not before or after. Also what about: which shall expire at the end of their next session? Doesn't that mean at the end of the next session of the senate that anyone appointed by a recess appointment has to step down. His commission has ended?

I don't know, but that is how I read it. But what the constitution states in plain English is usually not how it is interpreted.

I suppose the issue will be judged on whether a pro forma senate session is in reality a real senate session.

Well, it is more nuanced. The legal questions presented are whether the pro forma session constituted as "the recess" of the U.S. Senate and whether the vacancy "happened" during "the recess." The issue isn't whether a pro forma session "is in reality a real senate session."

The relevant constitutional provision is found in Article II of the U.S. Constitution.

The President shall have power to fill up all vacancies that may happen during the recess of the Senate​

The Court is not likely to determine whether the pro forma session was a real or fake session because the legislature is vested, by the U.S. Constitution, with the power, the sole power, to determine its proceedings. When there is a clear textual commitment of the issue to another branch of government by the U.S. Constitution. In this instance, the legislature alone has the power to determine when its in session and when it is not in session. From Article 1 of the U.S. Constitution.

Each House may determine the rules of its proceedings.​

So legally speaking, what you construe as a "real" or "fake" session is just your mere opinion, what matters is the text of the U.S. Constitution commits such decision making to the discretion the legislature and the U.S. Senate has determined pro forma sessions to constitute as a "session" and this is about as "real" of a session as it gets, unless of course the U.S. Constitution isn't real, neither is the U.S. Senate, or the rules it has espoused for when it is and isn't in session.

 

[NotreDame]

If the lower courts have ruled it unconstitutional, what did they base their decision on? Grimm's Fairy Tales? It seems strange to me that all of a sudden, things just don't mean what they used to since the late 1700s. Of course, our Constitution has never been a hindrance before to people who want things done the way the Constitution states, either!

You can read the decisions of the lower courts online. They based their decision on the text of the U.S. Constitution, which states the vacancy "happens" during "the recess."

The President shall have power to fill up all vacancies that may happen during the recess of the Senate​

The argument by the lowers courts was A.) the pro forma session of the U.S. Senate does not and has never been understood to constitute as "the recess" of the U.S. Senate and B.) The vacancy did not occur during "the recess" of the U.S. Senate. You can read the opinion of the D.C. Circuit at the link provided below.

http://www.cadc.uscourts.gov/internet/opinions.nsf/D13E4C2A7B33B57A85257AFE00556B29/$file/12-1115-1417096.pdf